Balancing Power: Exploring Mandatory Minimums as Checks on the Federal Judiciary

By: Hannah Cheves

Edited By: Danielle Spitz

The concept of checks and balances is crucial to understanding the fundamentals of American government. The balance of power between the legislative and judicial branches is often perceived simply as the interactions between Congress and the United States Supreme Court. However, the federal judiciary -- U.S District Court judges around the nation -- is an often-overlooked component of the judicial branch. These judges are subject to upholding sentencing guidelines from the legislative branch. One of these guidelines that have been passed down is that of mandatory minimums. The implementation of mandatory minimum sentencing guidelines, though hotly contested, represents a way that the legislative branch can put checks on the judicial branch, and seeing them as such offers an alternative way to interpret these sentencing guidelines.

The creation of these guidelines allowed lawmakers to rectify what they considered to be a flaw in the judicial system: sentences that were too low for certain offenses. Politicians saw a way to put checks on federal judges’ sentencing power by outlining guidelines to crack down more harshly on drug and gun offenses, which was a measure that initially drew large bipartisan support. [1] However, these mandatory minimum sentencing guidelines have been the target of much debate since the U.S Sentencing Commission revised the sentencing guidelines in 1986 and 1988. The Commission’s revisions included stricter sentences for those convicted of specific crimes, including gun and drug offenses.[1]  For example, a crime involving 5 grams of methamphetamine, in any capacity, has a mandatory minimum of five years. 

Many judges have come out and harshly criticized the measures. One of the most common criticisms comes from the idea that mandatory minimum sentences [2] are too punitive and thus contribute to mass incarceration in the United States, as critics say they punish low-level offenders as heavily as repeat or other high-level offenders. As U.S District Court Judge John Gleeson wrote in a 2013 opinion criticizing the mandatory minimum guidelines, “the vast majority of federal drug offenders who are neither managers nor leaders are subjected to the harsh sentencing scheme that Congress intended only for those who occupy such roles.”[2]

Despite the weight of these criticisms, much of the importance lies not in the content of the guidelines, but rather in the theory behind their implementation. It is an example of the many ways in which the branches of government check and balance each other. It would be unconstitutional for federal judges to operate unchecked, even if the policies that are put into place to check them are largely unpopular. In response to Judge Gleeson’s opinion, U.S District Court Judge James O. Browning authored an opinion highlighting his belief that the judiciary should step back from heavily criticizing sentencing guidelines: “If Congress wants to give the Court more discretion and power, it is in no position to decline more responsibility. On the other hand, if Congress wants to limit judicial discretion in sentencing, it is hardly worth a judicial temper tantrum. Given the many complex issues that are already delegated to federal judges, it is hardly worth judicial breath or ink begging for a little more or complaining about a little less. In the end, the issue is someone else’s call, and the Court tends not to worry about things it can do nothing about.”[3]  The idea behind this defense lies in the fact that the judiciary can do nothing but follow the sentencing guidelines as they are set forth; it is a political issue, not a judicial one. In essence, judges should be willing to take more or less power as it is laid out by the legislative branch because upholding checks and balances is the way the system works even when guidelines are disliked by judges. The implementation behind these guidelines by the legislative branch also lays the foundation for further measures to address concerns with federal sentencing. For example, the First Step Act, passed in 2018 with bipartisan support, intends to shorten mandatory minimum sentences for nonviolent drug offenses and ease the federal “three strikes” rule. This act joins the “safety valve” requirements and is aimed at helping those who qualify out of mandatory minimum sentences.[4]  

Although some criticisms of the content of the guidelines are largely justified and necessary, the implementation of the mandatory minimum sentencing guidelines also must be looked at through the lens of balancing power. Understanding the theory behind their implementation gives more depth to any defenses or criticisms mounted in regards to the content of the guidelines, and allows for more specific critiques and solutions to be brought forth. The judicial branch cannot be unchecked, and so the legislative branch creates ways for their power to be reined in. These criticisms are almost as essential to the balance of power as the methods of checks and balances themselves.

notes:

1. The Anti-Drug Abuse act of 1986 was passed with bipartisan support, and mandatory minimums were included. It was part of the 1980’s War on Drugs. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=149074

2. United States of America vs. Ysidro Diaz, MEMORANDUM EXPLAINING A POLICY DISAGREEMENT WITH THE DRUG TRAFFICKING OFFENSE GUIDELINE (United States District Court, Eastern District of New York January 28, 2013).

3. United States of America vs. Kayla Marie Reyes (United States District Court for the District of New Mexico 2014). 

4. Versions of these laws exist at the state level, and are decided by state legislators, not the federal government

Bibliography:

United States of America vs. Ysidro Diaz, MEMORANDUM EXPLAINING A POLICY DISAGREEMENT WITH THE DRUG TRAFFICKING OFFENSE GUIDELINE (United States District Court, Eastern District of New York January 28, 2013).

United States of America vs. Kayla Marie Reyes (United States District Court for the District of New Mexico 2014).

“PUBLICATIONS.” NCJRS Abstract - National Criminal Justice Reference Service. Accessed January 10, 2021. https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=149074. 

“Federal Narcotic Mandatory Minimum Sentences - Sections 841 and 851.” O'Brien Hatfield Reese, PA. Accessed January 10, 2021. https://www.markjobrien.com/a-guide-to-federal-criminal-court/federal-narcotic-mandatory-minimum-sentences-sections-841 and-851/. 

Cassell, Paul. “Are the Federal Sentencing Guidelines for Drug Dealing Unduly Harsh?” The Washington Post. WP Company, April 22, 2019. https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/24/are-the-federal-sentencing-guidelines-for-drug-dealing-unduly-harsh/. 

“Mandatory Minimums and Sentencing Reform.” Criminal Justice Policy Foundation. Accessed January 10, 2021. https://www.cjpf.org/mandatory-minimums. 

“H.R.5484 - 99th Congress (1985-1986): Anti-Drug Abuse Act of 1986.” Congress.gov, October 27, 1986. https://www.congress.gov/bill/99th-congress/house-bill/5484.

Covid-19’s Implications on the IDEA

By: Reese Rosental Saporito

Edited By: Arianna Staton and Olivia Cohen

The IDEA, or the Individuals with Disabilities Education Act, ensures access to public education and aid in school settings for students with disabilities. Over 7.5 million children depend on this aid.[1] However, students have faced eight months of online learning because of the novel Coronavirus. We must continue to enforce IDEA and adapt it to fit the needs of students with disabilities learning in 2020. 

The IDEA is the most recent in a series of laws protecting the rights of students with disabilities. In 1975, President Ford signed the Education for all Handicapped Children Act (EHCA) into law, which has developed into what we know today as IDEA. [3 ]This opened doors for students with disabilities to join their peers in a public school setting. The EHCA outlined that students with disabilities were entitled to appropriate public education in the least restrictive environment possible.[4]  Then, in 2004, the IDEA was passed and later amended through the Every Child Succeeds Act (Public Law 114-95) in 2015.[2] The IDEA reflects an enhancement of services and access to aid for children, including transition planning, and holds schools accountable for aiding students with disabilities in succeeding.[5] IDEA intervention services begin at birth, in which children between birth and two years of age receive early aid, such as early learning tools. Since 1975, the IDEA has created more inclusive classrooms and environments where students with disabilities can flourish and their rights can be protected.[6]

During the COVID-19 pandemic, questions arose on how to adapt these legal protections to affected education environments. In March 2020, The Department of Education, led by Secretary of Education Betsy DeVos, released a statement about the IDEA accommodations during the pandemic. This statement did not give guidelines on how to enforce the IDEA or how to provide adequate accommodations to students with disabilities.[7] The Department of Education eventually explained government guidelines about teaching students with disabilities during a pandemic in September 2020 through a Q&A released by The Office of Special Education Programs.[8] The Q&A reiterated the importance of IDEA Part B Service Provision, emphasizing that Individualized Education Program(IEP) teams remain responsible for ensuring appropriate public education, regardless of what form of learning is offered for the 2020-2021 school year. According to the document, it is up to these IEP teams to perform a yearly assessment and provide guidance for each student's accommodations.[9] The Q&A also states that the IEP team is responsible for outlining necessary online and in-person learning accommodations. 

Still, IEP teams did not receive guidance on developing an action plan to meet the legal requirements of the IDEA.[10] After an initial IEP, how are schools supposed to develop an adequate plan that fits the legalities outlined in the IDEA? Over the course of a school year, particularly during online learning, a disabled student’s needs may drastically change. If the IEP team has already performed their yearly assessment, how will the student’s accommodations change with them? In order to create an effective, legally adequate, and beneficial plan for students with disabilities, I believe an IEP assessment should be performed quarterly as opposed to annually. This will enable more regular check-ins, which will likely create a more effective accommodation plan during the pandemic. Since the needs of students with disabilities vary so much, required frequent IEP assessments will allow for more individualized solutions to the challenges of online learning.

The IDEA puts statutes in place for students who have specific learning disabilities requiring special education services.[11] Section 504 of the U.S. Rehabilitation Act (1973), however, provides accommodations for students with any disability, temporary or long-term, that does not fall under the umbrella of special education. Examples of Section 504 disabilities include temporary physical limitations (broken hand, concussion, etc.), ADD/ADHD, anxiety, depression, etc.[12] 504 accommodations are made in a regular classroom setting as opposed to the IDEA accommodations, which are made in a special education setting.[13] COVID-19 is likely affecting these accommodations just the same as the IDEA accommodations, but there is a more significant issue. The IDEA accommodations include counseling but Section 504 accommodations do not, so 504-eligible students may not be getting the right kind of help.[14]

In my opinion, the new 504 accommodations for mental health-related disabilities are campus wellness centers. Gabrielino High School in San Gabriel, California recently installed a wellness center on campus, which serves as a safe space for students struggling with mental health to not only take a break, but also receive counseling to help work through their feelings and struggles.[15] Throughout online learning, Saporito has provided online therapy as the Wellness Center Coordinator for 504 students. This type of accommodation can allow 504 mental health students to leave class for a period of time to get help, while the teachers know their students are supervised and safe. This type of accommodation helps work through emotional problems rather than giving extra time on assignments, for example, which can be helpful in alleviating stress but does not help work through the issues a student is facing.[16]

COVID-19 has created a period of mass uncertainty across the globe, but especially in school settings. Public schools are required under the law to provide reasonable accommodations for students with disabilities to enable success, achievement, and learning without discrimination. What can be done to ensure the legal implementation of these accommodations is adequately meeting the needs of students with disabilities? I propose the legal requirement of quarterly IEPs to ensure students with disabilities are receiving necessary accommodations year-round. 

Section 504 eligible students with disabilities also need accommodations, but they can look very different. Section 504 includes all mental health issues, so I believe a both plausible and beneficial accommodation would be legally enforcing the implementation of campus wellness centers. Wellness centers provide therapy and conversations with counselors to work through issues, and have been able to effectively provide therapy virtually during the pandemic. Reasonable accommodations are the law, but online learning has created an unprecedented situation. Reform is needed to provide legally adequate aid to students with disabilities under both the IDEA and Section 504 of the U.S. Rehabilitation Act. 

NOTES:

1. About IDEA: The Individuals with Disabilities Education Act

2. About IDEA

3. About IDEA

4. About IDEA

5. About IDEA

6. About IDEA

7. The U.S. Department of Education Press Release about students with disabilities

8. The U.S. Department of Education Q & A about the implementation of the IDEA

9. IDEA Q & A

10. IDEA Q & A

11. About IDEA

12. IEP vs. 504 Plan

13. 504 Education Plans

14. Interview with Chris Saporito

15. Saporito Interview

16. Saporito Interview

BIBLIOGRAPHY:

“504 Plan.” Hopkinton SEPAC. Accessed December 27, 2020. http://www.hopkinton-sepac.org/504-plan.html. 

“About IDEA.” Individuals with Disabilities Education Act. Accessed December 27, 2020. https://sites.ed.gov/idea/about-idea/. 

Bachrach, Steven J., ed. “504 Education Plans (for Parents) - Nemours KidsHealth.” KidsHealth. The Nemours Foundation, September 2016. https://kidshealth.org/en/parents/504-plans.html. 

Chris Saporito (Wellness Center Coordinator, Gabrielino High School) in discussion with the author, December 2020.

“QA Part B Service Provision (PDF).” Accessed December 27, 2020. https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-provision-of-services-idea-part-b-09-28-2020.pdf?fbclid=IwAR0lUw9XQg1TLXSd2IFP9c_KEPD7coP9jdRYXru-T1vM1jLr7dD2wr9QfX0. 

“Secretary DeVos Releases New Resources for Educators, Local Leaders on K-12 Flexibilities, Student Privacy, and Educating Students with Disabilities During Coronavirus Outbreak.” Secretary DeVos Releases New Resources for Educators, Local Leaders on K-12 Flexibilities, Student Privacy, and Educating Students with Disabilities During Coronavirus Outbreak | U.S. Department of Education, March 12, 2020. https://www.ed.gov/news/press-releases/secretary-devos-releases-new-resources-educators-local-leaders-k-12-flexibilities-student-privacy-and-educating-students-disabilities-during-coronavirus-outbreak. 

Parameters of Executive Power

By: Giliann Karon

Edited By: Grace Gay

In his concurring opinion in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson wrote that presidential powers are not fixed and emphasized the executive branch’s “separateness but interdependence.” [1] He divided the executive power that the president can delegate to the legislative branch into three categories: implied power, the “zone of twilight,” and the “lowest ebb.” The president has maximum authority when he acts in accordance with express or implied powers from Congress and the Court is unlikely to strike down these actions. In the “zone of twilight,” the president acts without congressional authorization and it is uncertain whether the president’s actions will be struck down. Instead of measuring the constitutionality of the president’s power against legal theories, the Court must take current events into account. When the president’s power is at its “lowest ebb,” the actions are the most likely to be struck down because they are incompatible with express or implied congressional power. Through analysis of a select number of Court cases spanning from Abraham Lincoln to George W. Bush through the lens of Justice Jackson’s test, I have established legal parameters for when a president can and cannot infringe on fundamental rights. During times of war, the Court is far more lenient than in times of peace. If the Executive Branch claims that the action in question is in the interest of national security, the Court will more than likely deem it constitutional, no matter how unethical it may be. 

The executive branch enjoys more power during times of war than during times of peace. The Court unanimously ruled that the president is not entitled to absolute executive privilege in US v. Nixon 418 U.S. 683 (1974). [2] They acknowledged that the president can prevent the release of some information if it is necessary for national security, but if Nixon withheld the tapes, the special counsel could not carry out its duties of administering justice.

During times of peace, however, the president cannot curtail constitutional rights without meeting an incredibly high level of scrutiny. While investigating President Richard Nixon’s involvement with the Watergate break-in, Special counsel Leon Jaworski sought a court order requiring Nixon to hand over tape recordings from the Oval Office. Nixon refused to comply, claiming executive privilege because there is a need for confidentiality of communications within the executive branch. If the president could claim executive privilege to prevent being implicated in a criminal trial, what else could he claim executive privilege over? The fair administration of justice was more important than the need for confidentiality within the White House. Nixon released the tapes and resigned shortly after. This ruling placed parameters on when the president can invoke executive privilege and ensured that no one is above the law. After the Watergate scandal, Congress passed a provision as part of the Ethics in Government Act of 1978 authorizing the Attorney General to establish an independent counsel to investigate violations among high-ranking government officials. The counsel could exercise all the powers of the Justice Department, even though it was created by the executive branch. The Attorney General would have limited oversight and could only remove the counsel if they were unable to carry out their duties or if the investigation was complete.

A body within the executive branch had comparable powers to the Justice Department, so there were concerns over possible separation of powers violations, specifically the Appointments Clause because the president did not directly appoint the independent counsel. In a 7-1 ruling, the Court found that the Act did not violate the Appointments Clause because the independent counsel was an inferior officer, so they could be appointed by three judges instead. The process of appointing the counsel did not violate separation of powers because it did not interfere with the executive branch’s other responsibilities or take away power from the branch. 

The ruling in Clinton v. Jones 520 U.S. 681, 117 S. Ct. 1636 (1997) held that the Constitution does not grant the president immunity from civil litigation over events that took place before he took office. [3] President Bill Clinton made unwanted sexual advances on Paula Jones, a state employee, while he was governor of Arkansas. Jones rejected Clinton’s advances and her supervisors at work retaliated by demoting her. When she sued for damages in federal district court, Clinton tried to invoke presidential immunity to get the suit suspended. Instead, the judge granted a stay until Clinton left office.

Both parties appealed. The appeals judge denied Clinton’s request, holding that the president is subject to the same laws as any other citizen. If she stayed the case until the end of Clinton's term, she would grant him a degree of presidential immunity. Clinton asked the Supreme Court to reverse the decision because he believed the Framers recognized that the president is different from an ordinary citizen. He also claimed that civil lawsuits would be distracting. The Court unanimously held that the president is only immune from civil litigation under exceptional circumstances. No precedent supported Clinton’s invocation of immunity for a civil suit over actions from before he took office. They also held that the president’s involvement in a civil suit does not violate separation of powers because the judicial branch is not performing any powers of the executive branch.

There is far more accountability within the executive branch during times of war than in times of peace. During wartime, the president cannot turn the country into a police state, but the Court is more forgiving of increased surveillance and militarism. As commander-in-chief, the president must defend the country from enemy forces. The president often tinkers with due process rights to safeguard American citizens and interests, as was the case in Korematsu v. U.S., 323 U.S. 214 (1944). [4]

After the bombing of Pearl Harbor and the anti-Japanese mass hysteria, President Franklin Delano Roosevelt signed Executive Order 9066, which authorized the relocation of Japanese-Americans into detention centers. Fred Korematsu, who was born in California to Japanese parents, was arrested because he refused to relocate. At the beginning of World War II, he underwent surgery on his eyelids and started going by Clyde Sarah to pass as white.

He argued that EO 9066 violated the Equal Protection clause of the Fifth Amendment because it discriminates on the basis of race, as well as the Due Process clause of the Fifth Amendment because it deprived him of the same rights of other citizens without due process, but the Court ruled against Korematsu. Justice Black, writing for the majority, said that laws restricting civil rights on the basis of race are not inherently unconstitutional. They are just subject to a stricter level of scrutiny. He acknowledged Korematsu’s hardships, but contended that hardships are a part of war and every American must pay their dues. Justice Frankfurter, concurring, believed the president’s actions must be “judged wholly in the context of war.” The president’s duty to prevent further aggression from Japanese forces justified the executive order according to the Court.

The Court has also allowed for more military aggression without a formal declaration of war. In the Prize Cases 67 U.S. (2 Black) 635 (1863), President Abraham Lincoln imposed a naval blockade of Southern ports after the Southern states seceded. [5] Union forces seized four ships that had been trading with the Confederacy. The ship owners declared the seizure unconstitutional because there was no official declaration of war. The Court determined that Lincoln’s actions did not amount to piracy and his blockade was constitutional absent a declaration of war because the Union was in a state of insurrection. When the current situation meets the requirements for war, regardless of whether Congress has issued a declaration, the president has more authority to enact measures that hinder the enemy’s military capabilities, including blockades and seizure of property.

Cases from George W. Bush’s administration held that the executive branch cannot fully suspend the rights of American citizens during wartime. In the wake of September 11th, Congress passed the Authorization for Use of Military Force, which allowed the president to use all necessary and appropriate force against countries, organizations, and people with links to terrorism. US-backed Afghan forces captured Taliban soldier Yaser Esam Hamdi, declared him an enemy combatant, and sent him to Guantanamo Bay. Since he was an enemy combatant, he could be held indefinitely without trial, pursuant to the AUMF. Upon discovering that Hamdi was an American citizen that moved to Saudi Arabia as a child, he was transferred to a military prison in Virginia. His father filed a petition for habeas corpus on his son’s behalf, alleging that indefinite detention without trial or access to legal assistance is a violation of due process. The Court held that Hamdi’s detention was unlawful because as long as he was held in the United States, he was entitled to due process. He was also entitled to due process because he was an American citizen, even though he was aligned with the Taliban. Justice O’Connor, writing for the plurality, emphasized that a “state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.” The decision did not address the rights of non-citizen detainees.

Guantanamo Bay detainees have no right to trial and restricted access to counsel, but Boumediene v. Bush 553 U.S. 723, 128 S. Ct. 2229 (2008), greatly expanded detainees’ legal rights by allowing them to bring habeas corpus petitions to federal court. [6] In 2002, Bosnian police arrested Lakhdar Boumediene and five accomplices for planning an attack on the US Embassy in Bosnia. The United States government deemed them enemy combatants and sent them to Guantanamo Bay. Boumediene petitioned for a writ of habeas corpus, but the District Court said he did not have a right to a habeas petition because he was not an American citizen and Guantanamo Bay is not in the United States. Four years later, Congress passed the Military Commissions Act of 2006. Section 7 prevented federal courts from hearing habeas petitions from enemy combatants detained overseas. Detainees could only be tried in military commissions. Boumediene petitioned again, arguing that the MCA violated the Suspension Clause, which only permits the suspension of the writ in cases of rebellion or invasion. The D.C. Circuit Court held that in 1789, the Suspension Clause only applied to American citizens on American soil. Even though Guantanamo Bay is on land that the United States leases from Cuba, the region is not within America’s borders. The Supreme Court denied Boumediene’s petition for a writ of certiorari, but reversed their decision three months later. In a 5-4 decision, they held that Section 7 violated the Suspension Clause, the due process clause of the Fifth Amendment, and the Geneva Conventions. Their decision restored federal courts’ jurisdiction over habeas petitions filed by Guantanamo Bay detainees.

The Bush administration best exemplifies how times of crisis justify enormous expansions of presidential power that snowball until America becomes a surveillance state predicated on a climate of fear. And if it’s under the guise of national security, the Supreme Court will usually let it stand.

Boumediene was one of those rare cases where the Supreme Court emphasized the importance of habeas corpus. If prisoners cannot challenge their unlawful detention, there is no way to hold the legal system accountable and reform the law. Allowing the vilest terrorists to have their day in court under a fair legal system is the crux of human rights. Regardless, Bush enacted wide-reaching surveillance programs and chipped away at detainees’ legal rights because he was acting in the interest of national security, and the United States was at war. The Court is quick to strike down executive actions that marginally reach beyond constitutional boundaries during times of peace.

Would FDR have been able to relocate Japanese-Americans if Pearl Harbor had not been attacked? Would Nixon have been able to keep the tapes if they contained classified information about a military strategy? There’s no way of knowing for sure, but the Court most likely would have struck down both of these cases. The president’s powers are clearly established, but they are not fixed. History will not be kind to those who supported Executive Order 9066 or Bush’s foreign policy measures. But the point is, the Court held that the president must have the ability to act beyond the powers specifically delegated in the Constitution in order to protect the country from enemies foreign and domestic, and the Court must take current events into account while protecting equality and due process.

NOTES:

1. Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952)

2. US v. Nixon 418 U.S. 683 (1974)

3. Clinton v. Jones 520 U.S. 681, 117 S. Ct. 1636 (1997)

4. Korematsu v. U.S., 323 U.S. 214 (1944)

5. Prize Cases 67 U.S. (2 Black) 635 (1863)

6. Boumediene v. Bush 553 U.S. 723, 128 S. Ct. 2229 (2008)

BIBLIOGRAPHY:

Thomas G, Epstein, Lee Walker, Constitutional Law for a Changing America - Institutional Powers and Constraints (Washington, DC: CQ Press, 2015)

Legal Realism in International Law

By: Assem Belhadj

Edited by: Dheven Unni, Michelle Pak, and Kirsten Huh

One of humanity’s most unique evolutionary traits is collaboration. As our social systems expanded and developed, social rules were formed to delineate which kinds of behavior are and are not acceptable. These laws evolved and have manifested in various ways as we developed distinct cultures and legal systems. With increasing globalization, our laws, legal traditions, and cultures have increased their contact with one another, creating a need for nations to collaborate further culminating in the emergence of international law and the International Court of Justice (ICJ). While it is difficult to reach global consensus on universal human rights and values, approaching international law through a legal realist approach—which affirms that jurisprudence should rely on empirical methods—allows for international judges to arrive at more objective decisions without giving preference to any legal tradition or succumbing to geopolitical influences.

British legal philosopher H. L. A. Hart, in his book The Concept of Law, described the law as the union of primary rules and secondary rules. Primary rules govern societal conduct and outline rules and consequences when they are not followed. [1] Secondary rules define what counts as the law, how laws can be changed, and how individuals judge the application of the law. [2] What separates laws from other rules is that laws are enacted through political processes. The meaning and viability of the law usually come into question during legal cases, requiring a methodology of interpreting the law that can ensure philosophical consistency and fairness. 

On the international stage, laws are usually derived from rules that govern nations’ conduct. International law is a relatively new legal system, set up along the lines of the UN ICJ Statute. Article 38 directs the ICJ to use “international conventions, … international custom, … the general principles of law recognized by civilized nations, [and]… judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” [3] However, what happens when these sources of international law contradict one another based on differing legal traditions? Or when they result in decisions by the ICJ that serve national interests rather than the international community? While some of these sources of international law are based on commonly accepted principles (jus cogens) or agreements between nations, seats distributed by geographic region attempt to account for differences in legal traditions: five for Western countries, three for African countries, two for Eastern European countries, three for Asian countries, and two for Latin American and Caribbean countries. [4] To account for the differences in legal traditions, the inconsistencies in the sources of international law, and to interpret the law with fairness to the international community, international legal jurisprudence must seek objective, empirical methods through which to make legal decisions. A legal realist approach would recognize that law is indeterminate due to its ambiguities, and that the law as it exists is separate from the law as it should be. [5] The law and its applications, however, are inseparable, and to properly evaluate and interpret the law, it must be tested through natural observations. This approach would benefit the objectivity in international legal cases, as judges would draw logical conclusions based on real-world observations independent of political interests and subjectivities, rather than relying on legal traditions or engaging in moral quandaries.

To achieve this objectivity, legal interpreters must understand how the law is practiced and is observed in society. The development of legal realism in the 20th century exposed the extent to which politics influences judicial decision-making and questioned earlier methods of impartial legal interpretations. [6] Legal realism allowed for the focus to be placed on the law in practice rather than in text. The actions of judges and the factors that led to their decisions were analyzed closer as human behaviors, leading legal realists to turn to social scientific methods to hypothesize legal outcomes. [7] Additionally, the developments in understanding society that have occurred in the century since legal realism was pioneered expanded the methods of understanding the law and its applications. Novel empirical methods in social scientific inquiry provide international legal scholars and judges with new ways to test hypotheses and make more scientific conclusions on international law. To account for these modern developments, a “New Legal Realist understanding of international law …  [takes into consideration] how international law obtains meaning, is practiced, and develops over time.” [8] This New Legal Realist (NLR) approach utilizes modern methods to broaden the sociological analysis of international law. Legal realism is not only grounded in objectivity, but also can progress with developments in the social sciences, further solidifying its importance in the future of international legal decisions. 

With the progressive nature of the NLR approach to international law, there arises the question of the role of past precedent in ICJ rulings. However, the ICJ statute explicitly excludes past decisions in the sources of international law. Former President of the ICJ, Gilbert Guillaume, wrote that “in developing its jurisprudence, the Court may refer to its precedent, but it has no binding character.” [9] Invoking stare decisis in the ICJ may challenge an NLR view that relies on the development of social scientific inquiry. But further challenges arise within an NLR ideological framework: how could stare decisis be based on the ever-changing social scientific consensus? Another challenge arises in considering the non-Western legal traditions that may not place importance on stare decisis. In order to deal with these challenges, international legal jurisprudence should first disregard attempts to legitimize stare decisis in ICJ decisions as it has no “binding character” in the sources of international law. Consequently, within an NLR approach, precedent should not be invoked to account for the ever-changing nature of social scientific inquiry. This provides leeway for international justices to determine which social scientific methods and conclusions are legitimate. The merits in this leeway arise when considering that no single scientific view will hold authority over court decisions, but this leeway will also let judges to provide their own argumentation on the methods they use which may lead to a variety of decisions being made under the facade of NLR. These challenges to legal realism in international law are vital to consider when seeking an international jurisprudence that can remain impartial to geopolitical influence.

Various traditions, values, and cultures make human groups distinct, which makes international jurisprudence more difficult. The most direct way to overcome these differences to arrive at common legal truths, however, is to empirically and logically interpret international law and its applications. International law exists to regulate behavior between states and using established truths of reality can allow for fairer and more just international legal systems. Once international law reaches this level of objective fairness, nations can be held accountable regardless of politics. This international justice can let us reach new, global heights of human collaboration and progress.

NOTES:

1. Hart, “The Concept of Law,” 81.

2. Hart, “The Concept of Law,” 79-99.

3. “Statute of the International Court of Justice”

4. Harris, “Cases and Materials on International Law,” 839.

5. Llewellyn, “Some Realism about Realism: Responding to Dean Pound,” 1222.

6. Bybee, “Legal Realism, Common Courtesy, and Hypocrisy,” 76.

7. Frank, “Law and the Modern Mind” 

8. Shaffer, “The New Legal Realist Approach to International Law”

9. Guillaume, “The Use of Precedent by International Judges and Arbitrators,”

BIBLIOGRAPHY:

Bybee, Keith J. “Legal Realism, Common Courtesy, and Hypocrisy.” Law, Culture, and the Humanities 1 (2005). 

Frank, Jerome. Law & the Modern Mind. Abingdon: Routledge, 2017. 

Guillaume, Gilbert. “The Use of Precedent by International Judges and Arbitrators.” Journal of International Dispute Settlement, vol. 2, no. 1, 2011, pp. 5–23., doi:10.1093/jnlids/idq025.

Harris, David, and Sandesh Sivakumaran. Cases and Materials on International Law. London: Sweet & Maxwell, 2020. 

Hart, H. L. A. The Concept of Law. Oxford: Oxford Univ. Press, 2012. 

Llewellyn, Karl. “Some Realism about Realism: Responding to Dean Pound.” Harvard Law Review 44, no. 8 (June 1931). 

Shaffer, Gregory. “The New Legal Realist Approach to International Law.” Leiden Journal of International Law 28, no. 2 (June 2015). 

“Statute of the International Court of Justice.” Statute of the Court | International Court of Justice. Accessed November 19, 2020. http://www.icj-cij.org/en/statute.